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Judgment
Sir Thomas Fredrick Dawson Miller, Kt., C.J.—In this case application is made for leave to appeal to His Majesty in Council from a decision of this Court dated the 24th April last overruling a decision of the Subordinate Judge of Monghyr. The value of the subject-matter of the suit is over Rs. 10,000 but objection is taken that the judgment sought to be appealed from, is not a decree or final order within the meaning of section 109(a) of the Code of Civil Procedure, 1908. The respondent and others instituted a suit to set aside a revenue sale of the Ijmali share in the Mahal Bist Hazari and to recover possession and mesne profits and after protracted litigation eventually obtained an order of His Majesty in Council in their favour. At the time the suit was instituted, partition proceedings were and had been for a long time pending under the Estates Partition Act in respect of the mahal the subject-matter of the suit. The partition proceedings terminated after the present suit commenced but some time before the appeal was heard by His Majesty in Council. The result of the partition proceedings was that the plaintiffs in that suit were in many, if not all, cases allotted other shares and interests--in some cases in different villages--in lieu of their original shares in the present estate. This matter was not mentioned to their Lordships of the Privy Council and the Order-in-Council does not purport to give the respondents possession of the substituted shares and interests but only of the original shares. The respondents having applied to the Court under Order XLV, rule 15, the matter was referred for execution to the Subordinate Judge before whom the suit originally came. The respondents (the applicants for execution of the Order-in-Council) prayed not for execution against the shares specified in the schedule to the plaint--but against the substituted shares and interests allotted under the partition. Objection was taken that the Order-in-Council gave no right or title to the decree-holders to possession of the substituted shares and the Subordinate Judge decided that the decree-holders were not entitled by proceedings in the execution department to ask him to ascertain what estates and interests had been substituted or to get possession of the substituted estates and interests and dismissed the case. The ground of this decision was as I understand it, that the Order in-Council disclosed no right of possession to the substituted estates and, therefore, it was unnecessary to hold an enquiry as the foundation of the claim was not proved. On appeal to this Court against the decision of the Subordinate Judge, the appeal was allowed and the Subordinate Judge was directed to restore the case to the file and to hold the necessary enquiries and to execute the order with reference to the substituted estates and interests. As I read this judgment, it was an adjudication that the plaintiffs in the suit were entitled to possession of the substituted estates when the same had been ascertained by the Subordinate Judge in the execution proceedings. The main question in the appeal was one which went to the foundation of the plaintiffs'' right to claim at all and was decided in their favour and could not be re-opened in the execution proceedings. The applicants now ask for leave to appeal from that decision to His Majesty in Council. Whether such an appeal lies, depends upon the interpretation to be placed upon section 109(a) of the Code of Civil Procedure. It is contended by the respondents that the judgment sought to be appealed from, is not a decree or final order within the meaning of that section but is merely interlocutory and one directing procedure. I cannot accept this view. "Decree" is defined in section 2(2) of the Code as "the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 47 or section 144". Then follow two exceptions which are not material in this case. The section then continues by way of explanation "A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
From this definition it is clear that a decree must conclusively determine the rights of the parties with regard to some matter in controversy in the suit although it need not finally dispose of the suit. Further, it must be observed that the word decree shall be deemed to include the determination of any question within section 47 of the Code. It would appear, therefore, that questions within section 47 where there is a controversy must be treated as if they were matters in controversy in the suit. The questions for determination in section 47 include all questions between the parties relating to the execution, discharge or satisfaction of the decree. The question now in dispute is, in my opinion, one relating to the execution, discharge or satisfaction of the decree and is a matter in controversy in the suit and must be deemed to be included in the definition set out in section 2(2) provided that the judgment sought to be appealed from, conclusively determines the rights of the parties in that matter. It is not easy and perhaps impossible to reconcile the numerous decisions that have been given with regard to the meaning of the words decree or final order and similar expressions in the different High Courts of this country. But this Court should endeavor to give expression to the rulings of their Lordships of the Privy Council in so far as they have been expressed in cases of this nature. In (1890) L.R. 18 I.A. 6 (Privy Council) , the question for decision was whether a decree directing accounts to be taken between the parties, was final within the meaning of section 595 of the Civil Procedure Code, 1882. The plaintiff in the suit alleged that the defendant was accountable to him on several claims. The defendant alleged that he had legal defences to all the claims and was not accountable at all. The Court held that as to some of the claims the defences were invalid and directed an account to be taken. The Court refused leave to appeal on the ground that their judgment was not a final order. The defendant then petitioned Her Majesty in Council to exercise the royal prerogative to admit an appeal but confined his argument to the ground that the Court below did not rightly interpret the Code. Lord Hothouse in delivering the judgment of their Lordships of the Privy Council pointed out that although in terms the decree did not declare the liability of the defendant it in effect did so; and as the real question in issue was the liability of the defendant the decree dealt with a cardinal point of the suit and determined it finally against the defendant and, therefore, came within the meaning of the section.
In the present proceedings in execution one of the main cardinal issues between the parties was whether the substituted shares and interests against which execution was sought, were liable at all under the Order-in-Council. Whichever way this question was decided it conclusively determined the rights of the parties in a matter which went to the whole root of the proceedings.
The case of 5 CWN 52 (Privy Council) was in many respects similar to the present case. The plaintiff there obtained a decree afterwards affirmed by Order-in-Council awarding him possession of an estate with future mesne profits. In execution proceedings the plaintiff recovered possession and a contest afterwards arose as to the period over which mesne profits were recoverable. This was argued as a preliminary paint. On appeal the High Court varying a decision of the Court below found the plaintiff entitled to mesne profits from the institution of the suit until the date of obtaining possession. They overruled an objection that under the Procedure Code no appeal lay to the High Court for want of finality in the decree. On appeal to Her Majesty in Council the same point was again urged and dealt with in the judgment. Their Lordships were of opinion that the decision as to the period of mesne profits was final in its essence. On page 156 this passage occurs. It resembles in principle a decree for an account made at the hearing of a cause which is final against the party denying liability to account and is appealable, though it is also in another way interlocutory and may result in the exoneration of the accounting party or even in the award of a balance in his favour. And it can make no difference in point of principle whether the decision be in favour of or against the liability to account. It is equally final in its effect and as such equally open to appeal." The judgment went on to test the question apart from general principles, on the construction of the Code then in force which by section 2 defined "decree" as "the formal expression of an adjudication upon any right claimed or defense set up in a Civil Court when such adjudication so far as regards the Court expressing it, decides the suit......... An order determining any question mentioned or referred to in section 244 (section 47 of the present Code)...... is within this definition" and came to the conclusion that the plaint and obvious meaning of section 2 was to make the order an appealable decree. Applying the same line of reasoning to the present case I can see no reason why the adjudication now under consideration should not be included in the definition of "decree" in section 2(2) of the Code of 1906 including as it does the determination of any question within section 47.
It has been argued before us that a remand order cannot be a legitimate subject of appeal to His Majesty in Council. This, in my opinion, is stating the matter too widely. In Ananda Gopal Gossain and Others Vs. Naffor Chandra Pal Chowdhdri and Others , a suit was brought u/s 167 of the Bengal Tenancy Act to annul certain encumbrances. The Subordinate Judge of Nadia held that the suit could not be maintained on the ground that service of notices had not been proved and that it was otherwise defective for non-joinder of parties. The High Court differed as to the service and remanded the case for addition of parties and re-trial on the merits. On an application to appeal to His Majesty in Council it was argued that a remand order could not be final. Sir Francis Maclean, C.J., decided that although on the face of it the order was one of remand, the question involved was a cardinal point in the case since, if the view of the Subordinate Judge were correct there was an end of the, suit and admitted the appeal. Applying the same principle to the present case the same result follows.
I do not lose sight of the fact that there is a series of cases in which it has been held that the dismissal of a suit on the ground that it is barred by the Limitation Act or by section 43 of the old Code (now Order II, rule 2 of the rules under the present Code) is not a final order from which appeals will lie. Cases of this class may perhaps be reconciled with the principles governing the cases already referred to on the ground that such decisions do not purport to deal with the merits of the case nor even proceed as far as the point where it becomes necessary to determine the rights of the parties which go to the foundation of the suit. However this may be, if and in so far as there is any conflict, I am bound to apply the principles enunciated by their Lordships of the Privy Council which, in my opinion, govern the present case and I would order that a certificate be granted that the case fulfils the requirements of section 110 of the CPC and is, therefore, a fit one for appeal to His Majesty in Council.
Chapman, J.
I regret that I do not feel entirely able to concur. If a defendant applies for an order that the plaint be rejected upon the ground that the suit appears from the statements in the plaint to be barred by law Order VII, rules 11(d) and the Court decides against the defendant, the decision is not a decree and is not appealable. This is apparent from the definition of the word decree in subsection 2 of section 2 of the CPC where it is said that the meaning of the word decree shall be deemed to include the rejection of a plaint. Upon the principle expressio unius est exclusion alterius, it is clear that an order deciding that a plaint shall not be rejected, is not included in the meaning of the word decree. In my opinion a mere determination that a plaintiff has a right to sue, is not a determination of his right with regard to all or any of the matters in controversy in the suit within the meaning of the definition of the word decree above referred to. The order of this Court in the present case was to the effect that it did not appear from the statements in the application for execution that the application was barred by any law. The order merely decided that the applicant had the right to apply. Applying the principles above indicated, I am of opinion that the order was not a decree.
If a decree holder institutes a suit instead of making an application and the opposite party objects that the suit is barred by the terms of section 47 of the Code, an order overruling that objection is not, as I have shown above, appealable. In a converse case such as the present where an application for execution has been made and the preliminary objection that the procedure should have been by suit has been overruled, it is, in my opinion, difficult to say that the order can rightly be held to be a decree.
The order of this Court was, in my opinion, an interlocutory order directing procedure and was, therefore, not a final order. I rely upon the judgment of their Lordships of the Privy Council in the case of 5 CWN 153 (Privy Council) .